Advisory Opinion

ADVISORY OPINION

An opinion by a court as to the legality of proposed legislation or conduct, given in response to a request by the government, legislature, or some other interested party.

Advisory opinions are issued in the absence of a case or controversy. Although they are not binding and carry no precedential value, they are sometimes offered as persuasive evidence in cases where no precedent exists.

Federal courts will not issue advisory opinions. This rule, based on the constitutional guarantee of separation of powers, was established in 1793 when john jay, the first chief justice of the Supreme Court, refused to provide legal advice in response to requests by President george washington and Treasury Secretary alexander hamilton. Washington asked the Court for advice relating to his Neutrality Proclamation in regard to the French Revolution. Hamilton asked Jay for an opinion on the constitutionality of a resolution passed by the Virginia House of Representatives. In both instances, the Court diplomatically but firmly refused to supply an opinion.

The Supreme Court has steadfastly resisted subsequent efforts to elicit advisory opinions, even when these efforts appear under the guise of an actual lawsuit. Thus, in Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246 (1911), the Court struck down an act of Congress that authorized the plaintiffs to sue the United States to determine the validity of certain laws. The Court found the lawsuits authorized by the act to be thinly veiled attempts to obtain advisory opinions, since the constitutional requirements of justiciability and an actual case or controversy were not satisfied. Justice william r. day, writing for the Court, predicted that if the justices rendered a judgment in the case,

the result will be that this court, instead of keeping within the limits of judicial power and deciding cases or controversies arising between opposing parties, as the Constitution intended it should, will be required to give opinions in the nature of advice concerning legislative action, a function never conferred upon it by the Constitution.

Echoing the convictions expressed in Muskrat, Supreme Court Justice felix frankfurter, writing on advisory opinions, stated, "Every tendency to deal with constitutional questions abstractly, to formulate them in terms of barren legal questions, leads to … sterile conclusions unrelated to actualities."

Unlike their federal counterpart, a number of state constitutions authorize their courts to issue advisory opinions. However, even in those states, courts usually restrict advisory opinions to pending legislation and refuse requests for opinions on abstract or theoretical questions of law. In any event, the opinions are not binding authority in future cases.

While courts are typically limited in issuing advisory opinions, the attorney general of the United States and state attorneys general frequently issue opinions that are advisory in nature. By statute, the president or head of an executive department may require from the U.S. attorney general an opinion on questions of law arising from the administration of that office or department (28 U.S.C.A. §§ 511-512 [1993]). Most states charge attorneys general with similar responsibilities. Although advisory opinions issued by attorneys general are not typically binding in nature, in some circumstances the opinions may bind the authorities that request them.

Advisory opinions have their greatest effect as guides to policy making for the executive and legislative branches of state government. They are most often sought in the areas of intergovernmental relations, taxation, and finance.

Advisory opinions contrast with declaratory judgments, which determine the rights of litigants in an actual controversy and involve specific individuals who are at least nominally adverse to each other. Declaratory judgments are allowed by courts at both the federal and state levels. Although the line between advisory opinions and declaratory judgments is a fine one, the Supreme Court has consistently reiterated the necessity of keeping it intact. In Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936), the justices insisted that the Federal Declaratory Judgment Act, which gives federal courts the power to issue declaratory judgments, "does not attempt to change the essential requisites for the exercise of judicial power." An actual, not theoretical, case or controversy between specific parties must still be shown. In another case, the Court stated specifically that the Declaratory Judgment Act cannot be invoked to "obtain an advisory decree upon a hypothetical state of facts" (Electric Bond & Share Co. v. Securities & Exchange Commission, 303 U.S. 419, 58 S. Ct. 678, 82 L. Ed. 936 [1938]).

further readings

Bonsignore, John J., et al. 1998. Before the Law: An Introduction to the Legal Process. 6th ed. Boston: Houghton Mifflin.

Schaper, Todd. 1998. "The Advisory Opinion Process: True Safe Harbors or More Rocky Coastlines?" New Jersey Law Journal 154 (December 14).

cross-references

Attorney General; Declaratory Judgment; Evidence; Hamilton, Alexander; Justiciable; Precedent; Separation of Powers; Washington, George.